Kafkaesque saga continues for David Hicks

February 21, 2007

The US Court of Appeals for the District of Columbia ruled in a majority verdict that Guantanamo Bay inmates have no right to challenge their detention in lower federal courts, a decision which will be challenged in the US Supreme Court.


Two Republican appointed judges ruled in the Government’s favour, with Judge Judith Rogers dissenting.

As Judge Judith Rogers remarked in her judgement, the Pentagon had left detainees with no other option outside the judicial system for challenging the legality of their detention, and the military tribunals, named the ‘Combatant Status Review Tribunals’, deprived detainees of rights of due process under the Constitution. The legal burden is placed on detainees to prove they aren’t terrorists. Judge Rogers ruled that the Military Commissions Act 2006 was not consistent with the US Constitution.

Judge Rogers also pointed out that the continued detention of inmates may be seen as justified by the Tribunals on the basis of evidence adduced from acts of torture.

The legislation the Court interpreted to reach their decision, the Military Commissions Act 2006, had been swiftly drafted and passed by the US Congress after the US Supreme Court had earlier ruled that the Bush Administration’s rules for trying civilian detainees before military commissions was unconstitutional.

The Act allows the Government to indefinitely detain foreigners who are designated as enemy combatants giving the CIA frighteningly broad powers to interrogate suspects. There have already been many documents released proving that officially sanctioned state sponsored torture has taken place in Iraq and Cuba. The Government continues to suppress the release of further documents which would expose the decision making processes which have led to these abuses. The information is conveniently hidden by the superficial classification of documents as ‘national security documents’. Acts of misconduct are bound to remain censored without any transparency.

The new Military Commissions Act 2006 deprived detainees of the right to challenge their indefinite detention without charges. Nearly 400 detainees continue to languish in legal limbo at a US military base in Guantanamo Bay in Cuba.

The right of habeas corpus, a basic tenet of the US Constitution should protect detainees from unlawful imprisonment. On two previous occasions, the US Supreme Court had ruled that the right of habeas corpus permitted Guantanamo detainees full access to courts.

However, in the appeals court decision, Judge Randolph, a Reagan appointee, ruled that a foreign entity without either property or a presence in the jurisdiction has no constitutional rights. This ruling suggests that President Bush’s powers are without limit, wherever he exercises them offshore.

The liberty of millions of lawful permanent residents in the US is seriously imperilled by Pentagon and FBI spying programs which randomly and arbitrarily targets peaceful activists and assorted protest groups in the United States. Anti-terrorism dossiers have been compiled on domestic organisations with nothing to do with terrorism.

US Senator Dodd has introduced a Bill into Congress ‘the restoring of the Constitution Act 2007’ to restore habeas corpus and due process for detainees at Guantanamo Bay, and prevent the President from arbitrarily deciding who is and who isn’t an enemy combatant. It also makes provision for a court to consider whether a person is being detained unlawfully, and proscribes the Government continuing to make up it’s own mind about the rules on torture, ignoring the Geneva Conventions. The Bill also aspires to end the double standard operating for privates and army personnel and high level Government officials implicated in felonies involving torture and abuse.

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